The Volokh Conspiracy
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Fourth Circuit (2-1) Upholds Ban on Teaching Any Person How to Make or Use Explosives While "Knowing" Such Person's Bad Intentions
From today's Fourth Circuit opinion in U.S. v. Arthur by Fourth Circuit Judge Steven Agee, joined by District Judge Roderick Young (E.D. Va.), the facts (though defendant's main challenge relates to the facial coverage of the statute):
Arthur [through his company, Tackleberry Solutions, offered] … "training," with the goal of "help[ing] the average person to be able to defend themselves" against "a tyrannical government of our own or an invading tyrannical government." He published videos and sold manuals online with titles including "Fatal Funnels, Wartime Tactics, Repelling the Assault," and "Quick Reaction Force, Modern Day Minutemen, Improvised Explosives." …
The FBI began investigating Arthur following a fatal incident in June 2020 involving one of his customers, Joshua Blessed. While searching Blessed's home in Richmond, Virginia, the FBI found fourteen live pipe bombs that were identical to those described in Arthur's manuals, as well as six manuals that he wrote.
Shortly thereafter, the FBI had a confidential informant—"Buckshot"—contact Arthur for training…. Eventually, Arthur invited Buckshot to join him for in-person training, for which Buckshot would be charged a fee. Buckshot accepted his invitation and, upon his arrival, explained to Arthur that "[the] ATF's been to my house…. [T]hey're probably coming back…. [W]hen they do, I want to be ready." … Arthur spent the next three hours teaching him how to fortify his residence against the returning federal agents.
[Among other things, Arthur] suggested mounting cans of Tannerite {a commercially available explosive, commonly used to make exploding targets for marksmanship purposes} around the property that could be detonated with a rifle shot. In addition to this "perimeter defense," Arthur suggested that it "wouldn't be a bad idea" for Buckshot to "put[ ] some [improvised explosive devices (IEDs)] right up around the doors [of the house]." He noted that he kept such an IED on his front porch.
Arthur also suggested "a setup called the Spiderweb," which he described as "a freaking death box." The "Spiderweb" involved blocking most entrances to Buckshot's house and then placing remotely operated explosives near the remaining entrances, along with a "sentry gun" that could be remotely fired. Arthur even went so far as to offer to "help [Buckshot] design [and] build it," and later showed Buckshot how to use a lightbulb to make a detonator ….Buckshot paid Arthur for the training, and the two agreed to stay in contact.
The majority concluded that the speech banned by the statute "fall[s] largely within one of the 'well-defined and narrowly limited classes of [unprotected] speech': speech integral to criminal conduct," because it was tantamount to aiding and abetting crime (rather than being protected "abstract advocacy" of crime "contemplated in [cases such as] Brandenburg v. Ohio):
[O]ne who teaches another how to make "explosive[s]," "destructive device[s]," or "weapon[s] of mass destruction," while knowing that the recipient of that information intends to use it to commit a federal crime of violence, has effectively facilitated the commission of the other's crime. That is, but for the proscribed communications, the other person would lack the means to commit their intended crime. Those communications are therefore necessary—or "integral"—to the other person's intended crime.
The facts in this case illustrate that general point: Buckshot told Arthur he wanted to kill ATF agents who were bothering him, but he needed Arthur's guidance to make that a reality. Arthur, in turn, provided Buckshot with all the information he needed to accomplish that objective. Arthur's actions were thus integral to Buckshot's intended crime.In effect, but for Arthur's instruction, Buckshot could not commit his intended crime….
Suppose that, rather than seek out guidance on how to make explosives, Buckshot went to Arthur in search of the explosives themselves. Suppose also that Buckshot relayed his nefarious intent to murder federal agents to Arthur, and that Arthur provided Buckshot with the explosives he needed to carry out his plot. Under those circumstances, Arthur's provision of the explosives would certainly be deemed integral to Buckshot's intended crime. After all, he needed explosives to commit the crime, and Arthur provided them.
The facts here—and under § 842(p)(2)(B) more generally—are functionally no different. Arthur taught Buckshot everything he needed to know to create the explosives he desired, and he did so knowing that Buckshot intended to use those explosives to commit a federal crime of violence. Arthur's teachings were thus integral to Buckshot's intended crime….
Instead, the statute's prohibitions are much more akin to the type of "aiding and abetting of criminal conduct" that this Court has held may be limited without running afoul of the First Amendment. In fact, the only real difference between aiding and abetting, on the one hand, and the conduct proscribed by § 842(p)(2)(B), on the other, is that the former requires the abettor to share the same criminal intent as the principal perpetrator. Section 842(p)(2)(B), by contrast, requires knowledge that the recipient of the bombmaking information intends to commit a crime. But for purposes of the First Amendment, this is a distinction without a difference. That's because, practically speaking, someone violating § 842(p)(2)(B) is aiding—i.e., facilitating—the underlying crime by intentionally sharing the specified information with someone that they know intends to use it to commit a proscribed crime. And because that sort of facilitation is undoubtedly "integral" to the underlying crime, it is unprotected speech….
It is correct that many of the examples of speech integral to criminal conduct include some sort of specific intent to commit an underlying crime…. [But] neither the Supreme Court nor this Court has ever limited this exception to only apply where the defendant possesses a specific intent to commit an underlying crime…. The main limiting principle for this exception is in its substance—that is, whether the speech was truly integral to the criminal conduct in question. And for the reasons already discussed, that requirement is plainly met with § 842(p)(2)(B)….
The court rejected the argument that guilty knowledge was too easy for the government to prove, reasoning that,
If guilty knowledge was so easy to prove in this context, it seems likely this issue would have arisen previously in the [subsection's 26-year history. But as counsel acknowledged at argument, this appears to be one of the first ever prosecutions under § 842(p)(2)(B).
The court also noted that the statute apparently doesn't cover a situation where a "speaker taught or otherwise disseminated bombmaking information to a broad audience" but "at some point after dissemination … became aware of at least one individual who intended to use that information to commit a crime." … "[B]ecause § 842(p)(2)(B) requires that knowledge to exist at the time of the proscribed teaching or distribution, a prosecution would not be successful under such circumstances." And it added:
Briefly, the Government argues that § 824(p)(2)(B)'s statutory counterpart—§ 842(p)(2)(A)—is the more applicable provision for [such] broad dissemination …. While we need not reach the issue, the Government raises a good point.
Section 842(p)(2)(A) broadly prohibits "any person" from "teach[ing] or demonstrat[ing] the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to … the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of," a federal crime of violence.
By contrast, § 842(p)(2)(B) prohibits "any person" from "teach[ing] or demonstrating to any person" the making or use of those same weapons, and "distribut[ing] to any person, by any means, information pertaining to … the manufacture or use" of those weapons, while "knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of," a federal crime of violence.
Even setting aside the obvious distinction between the two statutes—the differing mens rea requirements—there is another crucial difference: § 842(p)(2)(B) requires that the teaching, demonstration, or dissemination of information be "to any person," with the knowledge that "such person" will use it improperly. This suggests that the conduct proscribed by § 842(p)(2)(B) must be directed toward some specified person(s), rather than just sent out into the ether. Section 842(p)(2)(A) contains no such limiter, and thus more naturally reads as being aimed at the sort of broad dissemination Arthur posits in his hypotheticals.
Judge Roger Gregory dissented, largely arguing that the statute is unconstitutional because it requires mere knowledge that a recipient would use the information to commit a crime rather than purpose that this happen; an excerpt from the long opinion:
Knowledge is too readily proven during prosecution to sufficiently winnow this broad statute. To show knowledge, the prosecution generally must present evidence that the speaker is "aware" that a recipient intends to use the information in furtherance of a federal crime of violence. But adjudicators may "impute the element of knowledge" when "the evidence supports an inference of deliberate ignorance." Criminal defendants can satisfy a knowledge requirement for failure to investigate suspicious circumstances, as with a pharmacist purchasing medication at below-market rate, or a recipient of funds from illegal activities who failed to inquire about the source of suspicious deposits….
Consider, for instance, [a] university professor … who is scheduled to give a lecture on the physics of combustion, or even simply on the topic of potential energy, which surely constitutes a "part" of information about explosives. If the professor had reason to believe a listener would weaponize this information—perhaps a potential attendee sent a letter outlining malicious intentions, or an audience member wore a t-shirt suggesting an affinity for violence—then the professor could conceivably be prosecuted under Section 842(p)(2)(B) for providing restricted information knowing that an audience member intended to use that information for nefarious purposes.
The same could be said for a publisher of an instructional manual for safe use of explosives in construction and demolition. If the publisher received prior notice of a potential reader's inclination to weaponize the manual's information, the publisher would be at risk of prosecution under Section 842(p)(2)(B). In both examples, protected and socially valuable speech is stifled because of the possibility that a rogue audience member would misuse the information provided, even if the speaker did not intend such misuse….
[While I believe these examples] would satisfy the knowledge requirement to permit liability under Section 842(p)(2)(B) … they [in any event] constitute speech that might be chilled under this statute, especially "given the ordinary citizen's predictable tendency to steer wide of the unlawful zone." If ordinary citizens become aware that they can be punished for providing information they anticipate will aid a crime, they will surely hesitate to provide information when they believe there is some small chance of criminal activity….
At its core, this statute brings the First Amendment into new territory, where speech is prohibited not because of the intent of the speaker, but because of the intent of the listener. When a criminal statute requires the speaker to have a criminal intent, First Amendment concerns are lessened. U.S. v. Hansen (2023) [upholding punishment of criminal solicitation -EV]. The chilling effect of a criminal statute premised upon the intent of the speaker has minimal chilling effect, because the speaker will always know whether they have the requisite intent. When the speech is criminalized as a result of the listener's intent, however, the speaker is in a far more precarious position.
As a result, the prudent speaker who is unsure about the motivations of an audience will refrain from speech. An "important tool to prevent that outcome—to stop people from steering wide of the unlawful zone—is to condition liability on the [government]'s showing of a culpable mental state." For this statute, the knowledge requirement insufficiently establishes culpability.
I do not doubt that this statute restricts some legitimately proscribable speech; the circumstances of Arthur's case demonstrate that this statute has at least some constitutional applications. But the reduced mens rea requirement, in combination with the broad language of the statute, creates an unacceptably high risk of chilling protected expression….
And for the same reason, the dissent argued that the speech didn't fall within the "speech integral to criminal conduct" exception:
While the restricted speech may facilitate the Federal crime of violence, it is stretching the category beyond its historical limits to claim that the speech is "tantamount to" a federal crime of violence, or "simply a means" of committing a federal crime of violence…. [A]ll other speech integral to criminal conduct is penalized only when the speaker has the specific intent to commit the crime. Criminal solicitation, conspiracy, extortion, and perjury each require the speaker intend to carry out the underlying criminal act. The Supreme Court has defended the "speech integral to unlawful conduct" category by noting that "[s]peech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected." U.S. v. Hansen (2023).
And the dissent also argued that § 842(p)(2)(B) impermissibly restricted "sharing publicly available and socially valuable information":
As the U.S. Department of Justice acknowledged in its 1997 report on bomb manufacturing, "anyone interested in manufacturing a bomb, dangerous weapon, or a weapon of mass destruction can easily obtain detailed instructions from readily accessible sources such as legitimate reference books, the so-called underground press, and the Internet." The report further recognized that any statute attempting to quell the dissemination of this information would need to leave untouched "the wholly legitimate publication and teaching of such information, or otherwise violate the First Amendment."
The First Amendment provides strong protection for the provision of publicly available facts, such as those restricted by Section 842(p)(2)(B). The Supreme Court has long hesitated to punish speakers whose only misdeed was providing truthful information through a new avenue. See Florida Star v. B.J.F. (1989). When the state criminalizes sharing information that exists in the public domain, it places a burden on the speaker to refrain from speech but does not prevent the listener from accessing that information through other, legal channels. Absent an intent to facilitate the commission of a crime, "it is a limited set of cases indeed where, despite the accessibility of the public to certain information, a meaningful public interest is served by restricting its further release by other entities."
The dissent concluded:
As Justice Hugo Black wrote, "My view is, without deviation, without exception, without any ifs, buts, or whereases, that freedom of speech means that you shall not do something to people either for the views they have, or the views they express, or the words they speak or write." While there are no doubt benefits to restricting certain categories of speech, "[t]he First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it." I believe the shocking breadth of the statutory language, combined with the ease of proving knowledge and the substantial danger of chilling protected speech, justify imposing the "strong medicine" of facial invalidation for overbreadth.
For more on my general thoughts on the subject, see my Crime-Facilitating Speech article and my The "Speech Integral to Criminal Conduct" Exception article.
Sue J. Bai and Gavan W. Duffy Gideon represent the government.
